Gonzalez-Espitia v. Garland

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Fernando GONZALEZ-ESPITIA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 21-297

United States Court of Appeals, Ninth Circuit

March 29, 2023

NOT FOR PUBLICATION

Submitted March 27, 2023 ^[**] San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208-126-662

Before: BOGGS, ^[***] M. SMITH, and OWENS, Circuit Judges.

MEMORANDUM ^[*]

Fernando Gonzalez-Espitia, a native and citizen of Mexico petitions this court to review the Board of Immigration Appeals' denial of withholding of removal and Convention Against Torture (CAT) relief. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We dismiss the petition in part and deny in part.

Because the parties are familiar with the facts, we do not recount them here except where necessary to provide context. We review legal questions de novo and factual determinations for substantial evidence. Tomczyk v. Garland, 25 F.4th 638, 643 (9th Cir. 2022) (en banc). Because the Board of Immigration Appeals (BIA) affirmed the decision of the Immigration Judge (IJ) and incorporated portions of the IJ's decision, "we treat the incorporated parts of the IJ's decision as the BIA's." Maie v. Garland, 7 F.4th 841, 845 (9th Cir. 2021) (quotation omitted).

1. We lack subject-matter jurisdiction over Gonzalez-Espitia's argument that the BIA deprived him of due process by issuing a notice to appear (NTA) lacking date, time, and location information. "[W]e may not entertain due process claims based on correctable procedural errors unless the alien raised them below." Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002); see also Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (requiring exhaustion of a petitioner's argument "that the agency lacked jurisdiction because his charging document failed to specify the time and date of his hearing."). Gonzalez-Espitia's notice of appeal to the BIA and accompanying brief, each filed by counsel, contained no reference to the NTA argument that he now raises before this court.

2. The BIA did not deprive Gonzalez-Espitia-who was represented by counsel and repeatedly confirmed his desire to seek withholding of removal and CAT relief-of due process by failing to inform him of his eligibility for preconclusion voluntary departure. To prevail on a due process challenge, Gonzalez-Espitia must show both that (1) his removal proceedings were "fundamentally unfair," and (2) he suffered prejudice, such that "the outcome of the proceeding may have been affected." Zamorano v. Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (quotation omitted). Even assuming the first prong were met, Gonzalez-Espitia cannot show that he was prejudiced.

A petitioner can seek pre- or post-conclusion voluntary departure. See 8 U.S.C. § 1229c(a)(1), (b)(1). Though post-conclusion voluntary departure requires some threshold eligibility showings that pre-conclusion does not, see id., a grant of either kind of relief is discretionary and requires the IJ to weigh "favorable and unfavorable factors." Zamorano, 2 F.4th at 1221 (quotation omitted). Here, the IJ denied post-conclusion voluntary departure after weighing those factors, reasoning that Gonzalez-Espitia's eight unlawful entries into the United States suggested that he "does not abide by the lawful regulations and laws of the United States." Gonzalez-Espitia offers no reason to think that the IJ's reasoning and ultimate decision would have differed if he had requested pre-conclusion voluntary departure.

3. The BIA correctly concluded that Gonzalez-Espitia did not suffer past persecution. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(1).^[1] "While we have recognized that harm to a petitioner's close family members or associates may be relevant to assessing whether the petitioner suffered past persecution, we have not found that harm to others may substitute for harm to an applicant ...." Tamang v. Holder, 598 F.3d 1083, 1091-92 (9th Cir. 2010) (emphasis added). Here, Gonzalez-Espitia's sole past-persecution evidence concerns the extortion of his nephew, which lacked any direct effect on Gonzalez-Espitia. Moreover, Gonzalez-Espitia testified that he did not personally experience any harm while in Mexico.

4. The BIA was not required to conduct particular-social-group and nexus analyses after determining that Gonzalez-Espitia failed to establish persecution. A lack of persecution is dispositive of an application for withholding of removal. See 8 C.F.R. § 1208.16(b)(1) ("The burden of proof is on the applicant . . . to establish that his or her life or freedom would be threatened in the proposed country of removal ....").

5. Regarding CAT relief, the IJ did not err by failing to "directly ask[]" Gonzalez-Espitia which "part of Mexico he would be returning to." The BIA must consider "all evidence relevant to the possibility of future torture." 8 C.F.R § 1208.16(c)(3). Here, the IJ found that Gonzalez-Espitia had never been...